Game Changing Blunder By Barisan’s ROS

The letter dated 17 April 2013 from the Registrar of Societies (ROS) to the DAP was one of the worst pieces of partisan decision-making by Barisan-controlled civil servants intended to cripple an opposition party on the eve of nomination day prior to general elections. It would have resulted in a most unfair elections. At the outset, I disclose my interest: I was one of the lawyers advising the DAP on how to respond to the ROS’ letter.

The letter was faxed by the ROS to the DAP’s office at 5.25pm on the evening of 17 April 2013. It was however only noticed by DAP at noon the next day, 18 April. The letter informed the DAP of the existence of a dispute between its members and the party arising from the election of its office-bearers and the Central Executive Council (CEC) on 15 December 2012. The ROS went on to state that as the validity of these elections was impugned, he was issuing a notice under Section 16(1) of the Societies Act, 1965 (the Act) through that letter requiring the DAP to submit a written explanation to reach the ROS within one month on steps that the DAP will take to resolve the dispute.

But the critical decision of the ROS is found in the last sentence of the letter, stating that pending the resolution of this dispute, the ROS, acting under Section 3A of the Act “does not recognise the office-bearers of DAP appointed by the CEC on 15 December 2012”.

The practical effect of this decision was catastrophic. Lim Guan Eng, the Secretary-General of DAP, could no longer sign all the requisite documents for the nomination on 20 April of the DAP’s 156 candidates for parliamentary and state seats. Thus, the DAP’s right to field these 156 candidates in its own name, and to campaign using its famous rocket symbol was called into question. The timing was as dastardly as the decision itself, since the DAP only had 36 hours to decide its next course of action prior to nomination. Any doubt that this was the sole intention of the ROS’ decision was removed when it is realised that their letter was copied to the Elections Commission (EC). When are letters from the ROS ordinarily copied to the EC?

I shall not tediously advance in this note legal arguments of a highly technical nature as to why the ROS’ decision is terribly flawed in law, and is, an abuse of his awesome powers under the Act. In other words, the decision is “ultra vires” the Act. Even if the DAP was minded to challenge the ROS’ letter in court, the absolute lack of time to do so meant that this was neither a viable or practical option. As this was clearly a politically-motivated decision, the DAP’s response had to be political.

Danger offers challenges and opportunities. The DAP decided that instead of trusting either the EC or the ROS, it would accept the generous offer of Pas and PKR to stand on their tickets. Hence, once again a decision of a Barisan-directed agency comes back to haunt Barisan — an own goal, if you will. It would be difficult to find a single Malaysian who will attribute the decision contained in the letter dated 17 April to have been independently made by ROS. Administratively, the ROS reports to the Minister of Home Affairs. Hence, the only question is whether it was actually taken by Hishammuddin Hussein acting on his own or in consultation with Prime Minister Najib Razak. It absolutely defies belief that a decision of such magnitude on the eve of a country’s general elections can be made by a civil servant acting independently.

Unintended electoral consequence

Within hours, the Barisan/ROS decision had backfired, and at 9.30pm on 19 April, the ROS faxed a second letter to DAP. This is probably unprecedented and certainly represents the quickest “flip-flop” in the history of Malaysian governments. What caused the U-turn was not a realisation that their first decision was wrong and improper. Rather, it was based on realpolitik — a realisation that the Barisan would suffer at the polls for this monumental blunder, and damage control measures had to be taken quickly.

Although the second letter states that the ROS “has no objection to the DAP participating in the 13th General Elections and using its symbol”, its concluding sentence is of concern because it states that “it is only the office-holders in the CEC elected on 15 December 2012 who are not recognised by” the ROS. However, as the 156 DAP candidates were finally allowed to be nominated on 20 April even if their requisite documents were signed by Lim Guan Eng, the EC did not seem to be troubled by the inconsistent conduct of the ROS.

The Barisan/ROS decision of 17 April has an unintended consequence. It gave an opportunity to the three parties in Pakatan: Pas, the PKR and the DAP to become a closer union, which their senior leaders immediately accepted. This is not without risk; chauvinist fringes in the DAP and Pas may feel alienated by the landing of the red rocket on the green moon. However, the majority of voters will accept that the DAP was pushed into a corner and had to clear the immediate hurdle of being able to offer their 156 candidates to the electorate. Disqualification of these candidates by biased EC nominating officers on 20 April had to be avoided at all costs. The alacrity at which the PKR and Pas responded to the crisis in the DAP can only be a harbinger of true cooperation among them when they secure power in a fortnight.

A closer examination of the crisis bringing the three Pakatan parties together will indicate that it was not really an unintended consequence. On the contrary, it was most foreseeable. Why was it therefore not considered by the Barisan/ROS decision-makers before they issued the 17 April letter? When desperate people take desperate decisions, rationality evaporates.

A significant reason why Malaysian voters must decisively vote out Barisan as our federal government is its utter incompetence and inability to govern properly, as demonstrated by the ROS’ 17 April letter given on the instructions of Barisan. They have to be punished at the polls.

Tommy Thomas is an advocate and solicitor who was called to the Bar on 3 June 1976. He is a senior counsel and has argued many important cases as well as written contributions to the Bar Council and Aliran. LoyarBurok is delighted with his decision to contribute to the blawg.

Posted on 25 April 2013.
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